(a) a contracting authority to comply with the provisions of these Regulations … and with any enforceable Community obligation in respect of a public contract … is a duty owed to an economic operator.”

It is further provided in subparagraph (6):

“A breach of the duty … is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the High Court.”

As proceedings under the Regulations raise competition issues, they are ordinarily assigned to the Chancery Division.

Regulation 4(3) provides:

“(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—

(a) treat economic operators equally and in a non-discriminatory way; and

“It is the responsibility of Applicant Organisations to make sure that their tenders are fully and accurately completed and accompanied by the appropriate documents. We are under no obligation to contact Applicant Organisations to clarify their tenders or to obtain missing information or documents, and tenders which are incomplete may not be considered. It is Applicant Organisations’ responsibility to obtain at their own expense all additional information necessary for the preparation of their tender.”

“We may request Applicant Organisations to give additional information/clarification at any time during the tender process. Applicant Organisations should be prepared to provide additional information and/or clarify any aspects of their tender with us. We reserve the right to validate any part of your tender and information subsequently given to us.”

Mr Durance for the applicant in this case has placed considerable reliance on conditions 11.6 and 11.8 in the circumstances which I shall come to relate.

“Applicant Organisations may amend and re-submit their response to the PQQ and/or each ITT at any time up to the closing time and date” (which was, as I have said, 28th January 2010 at 12.00 noon). “If so amended and re-submitted by the Applicant Organisation it is understood that the last response submitted by an Applicant Organisation prior to the closing time and date shall be the response that is considered by the LSC in the evaluation and award process.”

“Applicant Organisation must not amend or alter any document comprising part of their tender after the closing time and date set out in paragraph 11.2.”

There is thus potential tension between conditions 11.6 and 11.8 which, read together, conferred a discretion upon the LSC to seek further information for clarification and condition 11.23, under which there was a ban upon amendments after the deadline.

“Given the scale of the tender exercise and the requirements to treat all applicants equally it was decided that we would only exercise discretion if it is apparent on the face of the application that something important was missing or there was an inconsistency.”

“10.18 Where a response to an ITT or Individual Bid is unsuccessful or rejected, Applicant Organisations will be able to request written reasons as to why it was unsuccessful or rejected.

10.19 There will be a right of appeal against a decision by us not to award a 2010 Standard Civil Contract or to reject your application if it is incomplete.

10.20 The right of appeal applies in the following circumstances:

(a) Where the Applicant Organisation does not pass the PQQ

(b) Where the Applicant Organisation does not meet the Essential Criteria

(c) Where the Applicant Organisation’s Individual Bid ranks lower than those of other Applicant Organisations on the Selection Criteria and is subsequently not awarded a contract.”

I interpose to say it is 10.20(c) which is relevant in the present case. By reason of having ticked the wrong box, the applicants in this case ranked lower than they should have ranked. Instead of tying for third place, they did not qualify at all.

“10.21 All those failing the PQQ or the Essential Criteria will be notified of this outcome before those Applicant Organisations whose tenders progress further.” (That is not relevant to the present case.) “The appeal period on the grounds of not passing the PQQ or Essential Criteria will therefore open and close earlier. Key dates are set out in the timeline in Section 3.”

I mention that because what happened in this case was that the earlier timeline was not engaged, so that the present applicants were notified of the failure of their bid at the same time as those who succeeded were notified of their success. The LSC of course had a reserve of matter starts – namely, the 10% that I have mentioned – to deal with the potential for successful appeals and therefore adopted the approach that this would enable them to proceed to award contracts without the appeal process having the potential to delay the award of contracts to successful applicants. Paradoxically, the result of a successful appeal in this case would have been to award the applicants more matter starts than they would have received had their original tender been accurate, because what was divided amongst the successful applicants were all the available matter starts earmarked for the Birmingham access point; that is to say, had there been a successful bid by the applicants, the matter starts for all other successful applicants with whom they would have tied would have been somewhat less, as there would be an additional successful bidder for the same number of starts. If however the appeal had succeeded, the applicants would have been awarded the same number of matter starts as those awarded to successful applicants in the meantime – in other words, a higher number.

“10.22 Appeals should be made through the eTendering system. The Legal Director (or the Legal Director’s appointed representative) will review all appeals, and he or she will determine the procedure and will decide whether to invite or require any further information and will notify organisations accordingly before making a determination on the appeal.”

The Applicant submitted a response to the Invitation to Tender (ITT) as part of its tender to deliver publicly funded Immigration services on 26 January 2010. A decision letter was sent to the applicant organisation on 28th June 2010.”

There then followed the material parts of the decision letter. The appeal letter continued:

“The Applicant Organisation submitted an appeal against the decision not to award a contract on 29 June 2010 stating:

‘… we have been awarded 5 points in Criteria 3, when we should have been awarded 8.

… We are unaware as to why the points have not been allocated. Either we have selected the wrong box due to difficulty with the e-tendering system at the time of the application …’”

There the speculation ends. There is no alternative to that “either”. In fact the “either” was the true reason for the applicant only being awarded 5 points instead of 8.

“Having reviewed the original tender response, I am satisfied that the score of 50 was correct based on the tender response completed by the Applicant.

I am satisfied that the Information for Applicants comprehensively detailed the actions required for an Applicant Organisation to submit its tender response. I am also satisfied that the consequences of failure to complete a tender response accurately are equally clear.

The purpose of the Terms and Conditions of Tender is to ensure that Applicant Organisations are dealt with consistently and fairly. The LSC is bound to comply with the Public Procurement Regulations 2006 which also require the LSC to treat tenderers fairly and consistently.

I am satisfied that the Applicant’s tender has been evaluated in accordance with the criteria which apply to this Invitation to Tender.

I do not agree that the decision in this case is disproportionate or irrational. I consider that it would, however, be disproportionate or irrational to ignore the tender rules and the LSC’s obligations under the Procurement Regulations in this case to the advantage of this Applicant and the detriment of other Applicants.

With regard to the criterion: ‘Experience of delivering legal services’: the Applicant’s response in the Tender Information Form (TIF) submitted with its tender stated that the Applicant Organisation has delivered Immigration Services and advised clients in at least 35 cases in the Immigration Category of Law since December 2008. The applicant was, therefore, correctly awarded 5 points against this criterion, as provided for in the points allocation applied to that selection criterion.

“The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity are subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued.”

“As a preliminary point, it ought to be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it.”

Here of course Mr Durance says that to keep out the true facts on the appeal process, given the availability of matter starts, went far beyond what was necessary to achieve the object in this case of the provision of proper legal services after a fair competition process.

“The legality of a measure adopted … can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue”.

That, it seems to me, echoes, though in slightly different language, what I have already cited from Morgan J’s decision earlier in the Lion Apparel case. Mr Durance says here that the blanket exclusion of the ability to correct obvious mistakes on appeal once they become obvious is manifestly inappropriate.

“33. The LSC disputes that it has a general discretion because a fair tender process must apply the same criteria to all bidders. A necessary feature of that process is to fix a date by which any bid must be finalised. To allow one bidder in effect to change or revise its bid after all other bidders have been told that cannot happen would, submits the LSC, result in an unfair process at least at the appeal stage when (necessarily) the results of the tender process have been announced.”

Then in the next paragraph he continued:

“34. Mr Sinclair is right to suggest that the detail of the appeals process is not spelt out in the tender document. Nonetheless, it takes its colour from the process of which it forms part. Having invited tenders against a set of published criteria it would generally not be lawful for the LSC to apply different criteria to one bidder in the appeal process. An appeal will result in a re-evaluation of a submitted bid against the published criteria.”

Then later on:

“I do not consider that the LSC can be criticised for preventing appellants at this stage in the process from amending their bids. It is undoubtedly right that a deadline for submitting a bid can, without offending the 2006 Regulations, in limited circumstances be extended if it would be proportionate to do so … but they do not arise in this case, which is concerned with an appeal process after the results of the tender process have been announced.”

“110. Under the principle of equal treatment as between tenderers, the aim of which is to promote the development of healthy and effective competition between undertakings taking part in a public procurement procedure, all tenderers must be afforded equality of opportunity when formulating their tenders, which therefore implies that the tenderers or all the competitors must be subject to the same conditions.”

Pausing there, that assists Ms Scolding more than it assists Mr Durance because the conditions which we are here concerned with include the conditions putting the onus on the applicant to get the answers right and barring amendments after the deadline. Paragraph 111 reads:

“The principle of transparency, which is its corollary, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority. It implies that all the conditions detailed in the award procedure must be drawn up in a clear, precise and unequivocal manner in the notice or contract document so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way; and, secondly, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the relevant contract.”

(4) Fourth, it precludes any risk of favouritism or arbitrariness on the part of the contracting authority: Case C-496/99 P Commission v. CAS Succhi diFrutta SpA [2004] ECR I-3801, at [111].

(5) Fifth, it promotes a level playing field by enabling all tenderers to know in advance on what criteria their tenders will be judged and those criteria are assessed objectively; Case C-19/00 SIAC Construction Ltd. v. Mayo County Council[2001] ECR I-7725, per Jacobs AG, at [38].”

“… it may be acceptable automatically to exclude some tenders on account of their being abnormally low if recourse to that rule is justified by the unduly large number of tenders, a fact which might oblige the contracting authority concerned to examine on an inter partes basis such a high number of bids that it would exceed the administrative capacity of those authorities or might, due to the delay which such an examination would entail, jeopardise the implementation of the project.”

This seems to me to justify the approach of the LSC in this case, which was to require the applicant organisations to evaluate themselves against the published criteria, leaving it open to such validation process as the LSC might consider appropriate following identification of successful bidders. At paragraph 35, having ruled that abnormally low tenders could be excluded in appropriate circumstances, this was also said:

“That would not be the case if national or local legislation or even the contracting authorities concerned were to set a reasonable threshold above which abnormally low tenders were automatically excluded on account of there being an unduly large number of tenders.”

“As a preliminary point, it must be borne in mind that the Commission has a broad discretion with regard to the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender. The Court’s review is therefore limited to checking compliance with the applicable procedural rules and the duty to give reasons, the correctness of the facts found and that there is no manifest error of assessment or misuse of powers.”

That emphasises the limited role of the court in a case such as this.

I now turn to consider the recent decision of the Court of Appeal in the case of Azam & Co. v. Legal Services Commission[2010] EWCA Civ 1194.The Court of Appeal upheld the decision of Briggs J to the effect that someone who is late with a tender (again for publicly funded immigration work) even by a very short time through oversight, is thereby barred from the tendering process. Pill LJ gave the first judgment and, after making citations from, amongst other cases, the Succhi di Frutta case, the earlier Law Society case reported in [2008] to which I have referred and another first instance decision of David Richards J in Leadbitter v. Devon County Council [2010] ELR 61 where various statements of principle were approved, he concluded at paragraph 34:

“I do not accept that there was a legal error in the decision-making process. The rules of tender had been drawn up; the significance of the deadline was stated. In a detailed letter the respondents explained the importance of their duty to adhere to the principle of equal treatment. A three-page letter would not have been necessary if the application for an extension of time had not been considered.”

He then went on to consider a separate point from that – whether proper consideration had been given to the reasons relied upon – and then in paragraph 36, turning to the question of proportionality, Pill LJ said this:

“As to proportionality, the judge acknowledged the ‘harsh economic consequences of the inability to tender’ as expressed at paragraph 70. However, he gave ‘weighty reasons against the grant of an extension’. I agree with those reasons. The decision not to permit an extension was not, in the circumstances, disproportionate. I have already read paragraph 70 of the judgment where the reasons are set out. These are put as an objective test, but it is clear, in my judgment, that the relevant considerations were kept in mind by the respondents. I also agree with the approach of David Richards J in Leadbitter and I accept that it reflects the earlier authorities. A deadline is a necessary part of a tendering process. The deadline was plainly stated in readily accessible documents. There is no fault by the respondents; they needed to be conscious of their duty to treat tenderers and potential tenderers equally and to avoid suggestions of favouritism towards a particular party. The failure to tender arose from a single and very unfortunate failure, though against the background of a failure by MrAzam and his firm to monitor what would seem to be documents sensible to be monitored by a firm doing this type of work, it was the failure to take action on the receipt of the letter of 23rd December. The need for an extension could not be attributed to any fault on the part of the respondents or to any factor outside the control of the appellants.”

“Those ranked lower on the list of acceptances, assuming that the appellants would have been accepted, would have obtained fewer cases than if the appellants were not present on the list and would therefore have been prejudiced by their presence.”

That does not apply here, of course, in the event that the LSC had allowed the appeal, because, as I have mentioned earlier, the applicant would paradoxically have got more matter starts than it would otherwise have got had its bid been correct in the first place. Those who were successful were in that sense not prejudiced.

“Moreover, in an oversubscribed competition such as this one was, in which there would have to be a proportionate scaling down of the awards of ‘new matter starts’ to the successful bidders, the introduction of a late bidder into the system would have the potential to affect those awards in a way which would not otherwise arise.”

That also applies here or at least would have applied had the mistake come to light earlier.

“The essence of a competition by way of tender such as that in question is to provide all competitors with an equal opportunity to make their case.”

That is obvious. Here I consider the applicants had an equal opportunity to make good their case for a legal aid contract. They availed themselves of that opportunity, but, through their own error, have not taken full advantage of that opportunity. That is a sadly regrettable outcome, but I do not think the LSC can be criticised for having applied the conditions of the tender. On the contrary, they would have exposed themselves to criticism had they acted otherwise. At all events, their decision to apply the conditions strictly is not manifestly wrong.